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The Department of Homeland Security is moving forward with plans to rescind the H-4 work authorization regulation and a proposed rule is undergoing final clearance with the agency, according to a status update DHS provided to a federal court Monday.
DHS attorneys said in the court filing that the agency’s intention to rescind the H-4 regulation “remains unchanged” and that final DHS review of a proposed rescission rule is ongoing with senior DHS leadership “actively considering” the rule for approval. Separately, in recent remarks to the Center for Immigration Studies on Aug. 15, U.S. Citizenship and Immigration Services Director L. Francis Cissna stated that the proposed rule is in the works but is competing against other regulatory priorities.
What the update means:
Background: The current H-4 regulation, which was promulgated in 2015 under the Obama administration, allows spouses of certain H-1B workers with pending green card applications to apply for an EAD. An estimated 71,000 H-4 spouses have benefited from the regulation and the anticipated rescission rule is being closely watched.
DHS stated its intention as early as December 2017 to rescind the H-4 regulation, both in its semiannual regulatory agenda and in court filings in a lawsuit that challenges the current regulation as unlawful. The court has held the lawsuit in abeyance based on DHS’ assertion that it is planning to rescind the current regulation. DHS originally planned to release a proposed rescission rule in February, but notified the court that it needed to revise its economic impact assessment and expected to release the rule in June. The agency did not provide an estimated timeline in its latest status report to the court.
BAL Analysis: The DHS update indicates that a proposed rule is nearing approval by the agency and will soon move to the next stage of review. Meanwhile, the H-4 regulation remains in place, meaning that eligible individuals may continue to apply for EADs and renew their current documents until a final regulation becomes effective, after a process that will likely take several months. In the meantime, employers and employees may wish to discuss alternative options for H-4 dependents. Companies and families affected by the anticipated repeal of the H-4 regulation are encouraged to submit comments to DHS during the notice and comment period that will begin when the proposed rule is published. BAL is following these developments and will report when the proposed rule is published.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The U.S. Embassy in Nigeria will reopen this Friday after a 10-day closure and resume services for visa applicants and American citizens. The embassy closed last week for undisclosed reasons and applicants were temporarily redirected to the U.S. Consulate in Lagos.
According to a new announcement posted Monday on the U.S. Embassy’s website:
BAL Analysis: The reopening of the embassy will relieve visa applicants from having to travel to Lagos; those with urgent travel needs may contact the U.S. Consulate in Lagos, whose operations were not affected by the closure. However, applicants should note that the Consulate will be closed for the Eid al-Kabir (Eid al-Adha) holiday Tuesday and Wednesday this week, and will reopen Thursday.
IMPACT – HIGH
U.S. Citizenship and Immigration Services (USCIS) announced today that it has updated its website to indicate that STEM OPT F-1 students are now permitted to engage in training programs that take place at a third-party worksite, such as a client site, as long as all training obligations and requirements are met. The update removes language that the agency had previously added to its website without notice stating that STEM OPT students were prohibited from being placed at client sites.
Key points:
Background: Earlier this year, USCIS quietly updated its website to explicitly prohibit employers from placing STEM OPT students at third-party worksites. However, the STEM OPT regulation did not prohibit third-party placements as long as the employer could prove that it retained the required control and supervision over the student. The change in policy was not officially promulgated or announced, and USCIS did not issue guidance on the new prohibition.
The update caused uncertainty for employers and students, particularly in light of a separate USCIS policy change that altered how “unlawful presence” is calculated for foreign students and exchange visitors. In July, a trade association for IT staffing companies filed a federal lawsuit alleging that the government violated the Administrative Procedure Act by implementing the third-party placement policy without going through the formal notice-and-comment rulemaking process.
BAL Analysis: The USCIS announcement allows employers to place STEM OPT students at offsite locations and provides greater clarity to employers after months of uncertainty. Before placing a student at a third-party worksite, employers should consult with counsel and be prepared to demonstrate that the student is and will remain their bona fide employee and have practices in place to meet all compliance and reporting obligations under the STEM OPT regulations. The student and employer must report all material changes to the designated school official (DSO) as soon as possible; the employer must report a student’s termination or departure within five business days; and the student must report certain changes, such as changes to the employer’s name and address, within 10 business days.
The U.S. Embassy in Abuja, Nigeria temporarily closed its visa services and services for American citizens Wednesday until further notice. No reason was given for the closure, but an announcement on the embassy’s website said the closure was “due to reasons beyond our control.” Other offices within the embassy remain open.
BAL Analysis: The announcement did not indicate how long the closure would last or when the U.S. embassy would reopen. Visa applicants should anticipate that they may need to travel to Lagos for visa appointments during the suspension in services in the capital.
U.S. Citizenship and Immigration Services (USCIS) said Wednesday it will make special measures available on a discretionary basis for those affected by wildfires in California.
BAL Analysis: Those in need of immigration services, who missed an appointment or had documents damaged because of the California wildfires can contact the appropriate government office or BAL for assistance.
U.S. Citizenship and Immigration Services opened the re-registration period today for current beneficiaries of Temporary Protected Status, or TPS, for Yemen who want to continue to maintain their status. The program has been extended until March 3, 2020.
Key dates and deadlines:
Background: The Department of Homeland Security originally designated Yemen for TPS on Sept. 3, 2015 and re-designated it on March 4, 2017. On July 5, 2018, Secretary of Homeland Security Kirstjen Nielsen announced that the status would be extended for 18 months until March 3, 2020 due to ongoing armed conflict and extraordinary conditions. Full reregistration instructions are available in the Federal Register announcement and on the USCIS website.
BAL Analysis: Current Yemeni TPS beneficiaries who want to maintain their status and employment authorization should re-register and apply for a new employment authorization document as soon as possible and not wait until their current one expires. Employers should be aware of the automatic extension of current employment authorization documents until March 2, 2019.
U.S. Citizenship and Immigration Services has announced that in September it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s September Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in September.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the September Visa Bulletin.
U.S. Citizenship and Immigration Services announced late Thursday that it has made a revision to a final policy memorandum that takes effect immediately on how “unlawful presence” is calculated for foreign students and exchange visitors who are subject to the three- and 10-year bars on admission based on “unlawful presence.”
The original memorandum, issued May 10 with an effective date of Aug. 9, expands and accelerates the accrual of unlawful presence for nonimmigrants in F (student), M (vocational student), and J (exchange visitor) status. They will accrue unlawful presence if they fail to maintain status, and unlawful presence will be counted from the day after they violate their status. Under previous longstanding policy, unlawful presence was not triggered for students (who are admitted for “duration of status” rather than for a specific time period) until the government made a finding that the individual was out of status.
Following a 30-day public comment period that ended June 11, the agency has decided to address a concern expressed by stakeholders and made the following revisions:
Background: The calculation of unlawful presence is important because nonimmigrants who accrue a certain number of days of unlawful presence and leave the United States are barred from re-entering. F, M and J nonimmigrants who accrue more than 180 days but less than one year of unlawful presence and leave the country are barred from re-entering for three years, and accrual of more than one year of unlawful presence will lead to a 10-year bar.
Under the original version of the policy memorandum, F, M and J nonimmigrants who fell out of status and filed a reinstatement application could suspend the accrual of unlawful presence for the period they were out of status if their application for reinstatement was ultimately approved, but they would continue to accrue unlawful status (and potentially be subject to a subsequent re-entry bar) while they sought reinstatement.
BAL Analysis: The revision allows F, M and J individuals to toll the unlawful presence clock while a reinstatement application is pending, but it resumes if the application is denied. Individuals should ensure that they are in compliance with all term of their status, and F and M students should be mindful of the five-month window for filing a reinstatement application. USCIS is holding a national stakeholder engagement about this policy memorandum on Aug. 23. Those interested in attending must register here.
Priority-date cutoffs for most employment-based categories based on “Final Action Dates” will retrogress significantly in September, the final month of fiscal year 2018, according to the State Department’s September 2018 Visa Bulletin released today. A priority-date cutoff has been imposed on EB-2 and EB-3 categories for several countries that were current as of August. This follows the imposition of a priority-date cutoff in August on EB-1 categories for El Salvador/Guatemala/Honduras, Mexico, the Philippines, Vietnam and All Other Chargeability Areas because of extremely high demand.
The number of visas are typically depleted at the end of the fiscal year and priority-date cutoffs retrogress before new immigrant visa quotas are available in October.
Key movements:
Additional notes: In the coming months, the EB-1 category for all countries will have cutoff dates imposed in October and is expected see limited, if any, forward movement before December.
It is likely that cutoff priority dates in the EB-2 and EB-3 categories for September are being imposed to control the number of visas issued between now and the end of September. After September, the EB-2 category for all countries except China and India are expected to be current for the foreseeable future, and the EB-3 category for all countries except China, India and the Philippines is expected to be current.
The State Department also released its Dates for Filing chart for September. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services (USCIS) confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in September. In August USCIS used the Final Action Dates for Employment-Based cases, and is likely to use that chart for the September numbers as well.
The Labor Department has posted processing times current as of July 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in May and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in January and earlier, and appeals filed in June and earlier are being reviewed for reconsideration.
Average PERM processing times in July:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in May and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in July and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in May and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in July:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in May and is awaiting PWDs for requests filed in May and earlier.